TELECOM DISPUTES SETTLEMENT &
APPELLATE TRIBUNAL
DATED 16th
DECEMBER,2009
PETITION
No.40(C) OF 2009
M.A. No.94 OF 2009
Intermedia
Cable Communications Pvt. Ltd. … Petitioner
Versus
M/s
ZEE Turner Ltd. & Ors. …Respondent
BEFORE:
HON’BLE MR. JUSTICE S.B.SINHA, CHAIRPERSON
HON'BLE MR.G. D. GAIHA, MEMBER
|
For Petitioner |
: |
Mr.Navin Chawla, Advocate Mr. Sharath Sampath, Advocate |
|
For Respondents 1, 2 & 3. |
: |
Mr. Maninder Singh, Senior Advocate with Mrs.Prathiba
M. Singh, Mr. Saurabh Mishra, Mr.Arjun Natarajan,Ms.Nitya
Thakur, Advocates |
ORDER
The
petitioner is an MSO based in Pune. It
had entered into two subscription agreements dated 01.01.2005 with the
respondent for transmission of its signals to subscribers. Inter alia on the premise that the respondent
had issued a notice in terms of clause 4.5 of the regulation as also published
a public notice dated 07.03.2009, the
instant petition has been filed claiming inter alia, the following reliefs :
“(a)
restrain the respondents from in any manner deactivating or disturbing the
supply of their TV channel signals to the petitioner.
(b)
set aside the impugned public notice dated 07.03.2009 issued by respondent no.
1
(c)
direct the respondent no. 1 to enter into the subscription agreement in terms
of the minutes of the meeting dated 11.4.2008 upon complying with the
conditions set out therein and as set out above.
(d)
direct the respondent no. 1 to forthwith supply their TV channel signals to the
petitioner on digital mode through the SMS system installed by the petitioner
and charge on the basis of CAS rates for the same.”
2. By reason of an order dated 24.03.2009,
this Tribunal recorded the request of the parties expressing their intention to
resolve their disputes and differences amicably. It did not materialize.
A
formal notice was however issued on 29.07.2009.
This Tribunal opined that all issues between the parties should be
settled through negotiations. Various
meetings were held between the parties.
Pursuant thereto inspections were also held in the premise of the
petitioner.
3. Parties exchanged their pleadings.
From
the order sheet dated 20.10.2009, however, it appears that the following
contentions were raised by the respondent:
1. The
subscription amount should be determined at Rs. 52 lakhs p.m approx, and
2. There
is outstanding dues of Rs. 3.15 crores
4. This Tribunal directed:
1. As
an interim measure, the petitioner is to pay to the respondent subscription fee
@ Rs. 40 lakhs plus statutory taxes p.m. w.e.f. 24.03.2009 till final disposal
of the petition.
2. A
sum of Rs. 2 crores out of Rs. 3.15 crores as lumpsum amount be paid to the
respondent.
5. The petitioner filed a writ petition against
the said order before the High Court of Delhi.
The said Writ Petition marked as WP(C) 12670 / 2009. By an order dated 27.10.2009, the
aforementioned interim order was set aside by the High Court, inter alia, stating:
“1. Learned senior counsel for the petitioner
states that the petitioner
without prejudice to rights and contentions and subject to the final outcome
of the appeal will deposit Rs.2 crores on or before 7th November, 2009. The statement is taken on record and
accepted.
2. The next question relates to direction to
the petitioner to pay Rs.40
lacs plus statutory taxes per month with effect from 24th March, 2009 till the petition
is finally decided. The directions given by the learned Telecom Disputes
Settlement & Appellate Tribunal are without reasons. Learned counsel
for the petitioner in this regard has drawn my attention to the
averments made in the writ petition and has also pointed out that the
petitioner was earlier paying monthly subscription fee of
Rs.30,05,660/-. Learned counsel appearing for
the respondent No. 1, on the other hand, submits that the direction
for payment of Rs.40 lacs plus statutory taxes was a consent order having
regard to the fact that the respondent No.1 has raised a claim of
Rs.52 lacs per month. Learned counsel for the petitioner disputes and denies
the said contention. Learned counsel further states that as the petitioner
company had agreed to pay Rs.2 crores, they are liable to pay monthly
subscription charges only with effect from 21st November, 2009 and not from
24th March, 2009. Learned counsel for the respondent No. 1 disputes the
said contention on the ground that it is entitled to monthly subscription
@ Rs.52 lacs from 24th March, 2009.
3. Admittedly, the order dated 20th October,
2009 passed by Telecom
Disputes Settlement and Appellate Tribunal is non-speaking order. It does not deal with the contention of
the parties or state the reason why interim direction to pay Rs. 40 lacs
per month is being passed. Accordingly, the matter is remanded back to the
tribunal for fresh adjudication on the interim application. The learned
tribunal will give reasons for deciding the application and will not be
influenced by its earlier order dated 20th October, 2009. It is clarified
that this Court has not expressed any opinion on the merits of the order dated
20th October, 2009 in favour of the petitioner or the respondent. The
matter is already listed before the learned tribunal on 4th December,
2009. However, it will be open to the parties to move an application for
early hearing and fixation of the earlier date. The writ petition and all
pending applications are disposed of.”
In view of the aforementioned
directions of the Hon’ble High Court, this matter was heard by us afresh.
Mr. Navin Chawla, learned counsel
appearing on behalf of the petitioner has contended :
(a)
The petitioner is ready and willing to pay
the subscription amount @ Rs. 30 lakhs which was payable in terms of the
agreement.
(b)
Detailed negotiations having been held by
and between the parties not only with regard to the amount of subscription fees
for renewal of the agreement but also towards carriage charges, as also in view
of the fact that in the meeting dated 3.8.2009, the respondent offered a
subscription fees of Rs. 40 lakhs inclusive of taxes, it is inconceivable that
the petitioner could be put in a worse position by reason of an interim order
or otherwise.
(c)
The petitioner has been asking the
respondent for fixation of amount of subscription on a-la-carte basis and not
on the basis of an offer of bouquet and if the said offer is accepted, the
amount of subscription fee would come to less than Rs. 30 lakhs per month.
(d)
As the petitioner had established Subscriber
Management System(SMS), the respondent should be directed to supply signals as
in the CAS area.
(e)
The number of subscribers or the SLR could
not have formed the basis of agreement.
(f)
The Telecom Regulatory Authority of India in
its regulation dated 17.03.2009 clearly directed that attempts should be made
to move towards digitalization wherefor RIO plus Voluntary CAS had also been
recommended.
(g)
The contention of the respondent that the
petitioner had been paying subscription fees of Rs. 52 lakhs could not have
formed the basis of its demand as Star had also offered the carriage charges to
it as a result whereof it is the respondent who is pay some amount to the
petitioner.
Mr.
Maninder Singh, learned senior counsel appearing on behalf of the respondent,
on the other hand, urged:
(i)
Pune having not been declared a CAS area, no
relief cannot be granted by this Tribunal as prayed for in prayer (d) or
otherwise.
(ii)
As the question of charges payable for CAS
services is being considered by TRAI, this Tribunal cannot issue any direction in
this behalf.
(iii)
In any event, TRAI had contemplated voluntary
CAS and not an involuntary one, no relief can be granted to the petitioner on
that basis.
(iv)
In terms of the provisio appended to
Regulation 3.2 of the Telecommunication (Broadcasting and Cable Services)
Interconnection Regulation, 2004 (13 of 2004), as amended on 17.03.2009
carriage charges in law being not permitted the same cannot be mixed up with subscription fees, and thus, the prayer of the petitioner cannot be acceded
to particularly in view of the fact that the legality of the said provision is
not in question.
(v)
No relief having been sought for against
Respondent No 2, the contention of the petitioner raised with regard to adjustment
of carriage fees from this amount of subscription fee cannot be acceded to.
(vi)
In any event the agreement by and between
the petitioner and the respondent no. 1 having expired and furthermore, the
agreement for payment of carriage charges by and between the petitioner and
respondent nos. 2 and 3 having also expired, the amount payable under different
agreements cannot be adjusted.
6. Before
adverting to the rival contentions raised on behalf of the parties, we may
notice that indisputably, in a meeting dated 28.03.2008 the parties hereto discussed
various issues. The respondent No.1 company was represented by four representatives
led by one Shri Arup Gopikrishna whereas the petitioner was represented by its
Chairman. Para 5 & 6 of the
resolution adopted in the said meeting read as under:
“5. Mr.
Arup Gopikrishna expresses the willingness on behalf of the Zee Turner Ltd. to
enter into a fresh agreement with ICC with effect from April 2008 based on the
subscriber base as per the existing invoices raised on ICC. However, ICC had expressed their concern
that post the “Tariff Order” dated 04.10.2007 of TRAI subscribing to channels
on Bouquet bases is unaffordable to ICC under the circumstance already
explained in point no. 2 above. Mr. Arup Gopikrishna expressed the willingness
on behalf of Zee Turner Ltd. to discuss
and finalise fresh agreement to the mutual benefits of both the companies at
the same sub-base.
6. Post finalization of fresh agreement Mr. Arup
Gopikrishna has also assured ICC that Zee Turner Ltd., would be giving signal
for its Zee Sports channel for a nominal subscription fee. Further he has asked ICC to consider subscribing
to Zee Next & Zee Talkies channels,
the subscription fee for which would also be nominal. ICC has assured to take a decision in this
matter based on the negotiations for channel placement fees for 2008-09 which
is likely to be concluded in the near future.”
8. Another
meeting took place on or about 11.04.2008. In the minutes of the meeting
recorded at paras 4.1, 4.2, 4.3 and 4.5, Shri Arup Gopikrishna appears to have acknowledged
that the petitioner had been suffering losses towards non receipt of revenue
from hotels and commercial establishments operating in its network area,
whereas revenues were being collected directly by Zee Turner Ltd. through their
authorized distributors. It was given
out that the senior management of the company agreed to compensate IMCL in this
behalf.
It is, however, contended that according
to the respondent Shri Gopikrishna in absence of any other officers,
representing the management in the earlier meeting, had no independent
authority to give any assurance to the petitioner.
9. Indisputably,
the subscription fee payable by the petitioner was Rs.30,05,660/- p.m. without
taxes According to the petitioner,
respondent no. 2 and respondent no. 3
were to pay a sum of Rs. 24 lakhs p.m. towards carriage charges.
10. It
however, appears that another meeting took place on 03.08.2009 wherein order of
the Hon’ble Supreme Court of India dated 12.02.2009 staying the operation of
this Tribunal’s order dated 15.01.2009 in regard to Tariff Order for CAS area
was noticed. Prayer (d) in the said
petition is premised thereupon.
Another
meeting took place on 20.10.2009.
11. It is also relevant to notice that an invoice
dated 08.01.2009 was issued by Star Den Media Services Pvt. Ltd. whereby and whereunder
the petitioner was asked to pay a sum of Rs.45,47,357.52 which is stated to be based
on the subscriber base of 48492 and the same subscriber base for the
respondent’s channels is equal to a sum of Rs. 52 lakhs approximately as
subscription fees. It is also of some
significance to notice that the agreement between the parties expired in March
2009. The terms and conditions of the agreement including the renewal thereof
is governed by Telecommunication
(Broadcasting and Cable Services) Interconnection Regulation, 2004, which was amended in the year 2006 by a
regulation known as The Telecommunication (Broadcasting and Cable
Services) Interconnection (Third Amendment) Regulation, 2006” (10 of 2006). Clause 8 of the said regulation reads as
under:
“8. Time Period for Renewal of existing agreements
8.1 Parties to an
interconnection agreement for supply of TV channel signals shall begin the
process of negotiations for renewal of existing agreement at least two months
before the due date of expiry of the existing agreement.
Provided that if the
negotiations for renewal of the interconnection agreement continue beyond the
due date of expiry of the existing agreement then the terms and conditions of
the existing agreement shall continue to apply till a new agreement is reached
or for the next three months from the date of expiry of the original agreement,
whichever is earlier. However, once the parties reach an agreement, the new
commercial terms shall become applicable from the date of expiry of the original
agreement.
Provided further that if
the parties are not able to arrive at a mutually acceptable new agreement, then
any party may disconnect the retransmission of TV channel signals at any time
after the expiry of the original agreement after giving a three weeks notice in
the manner specified in clause 4.3. The commercial terms of the original
agreement shall apply till the date of disconnection of signals.”
12. As three months’ period contemplated in
terms of the said Regulation has since expired, the petitioner therefore, as of
right cannot put forward a claim that the respondent is obligated to accept only
charges of Rs. 30,05,660/- towards subscription fees from it. An agreement between the parties must be a consensual
one; it cannot be unilateral.
This Tribunal although exercises some jurisdiction in
respect thereof, but the same is ordinarily limited to fairness and / or
reasonableness thereof.
13. Some issues by and between the parties might
have been discussed in various meetings.
The petitioner strongly relied upon minutes of the meeting dated 3.8.2008
in terms whereof an offer was made by the respondent for payment of
subscription fees of a sum of Rs. 40 lakhs inclusive of statutory taxes. The petitioner however, did not accept the
said offer. According to it, the same
was a burdensome one, keeping in view the various problems faced by it.
It will bear repetition to state that the petitioner before
us, however, agreed to pay an amount of Rs. 30,05,660/- by way of monthly subscription
fees as an interim measure.
14. The question which arises for our
consideration is as to what should be the amount of subscription fees directed
to be paid by the petitioner as an interim measure.
15. Before, however, we advert to the said question
we may place on record a controversy which is a matter of serious concern to us,
that is whereas according to Mr.Maninder Singh, the said order was passed with
consent but the said words were inadvertently left out; Mr.Navin Chawla denies
and disputes the same. The order of the
Hon’ble High Court shows that before the High Court the petitioner accepted to
pay a sum of Rs. 2 crores to the respondent.
Mr. Chawla very fairly states that concession made before the High Court
was based on consensus of the parties in relation thereto. Such a fair stand,
however, was taken before the High Court only on the basis that at least a part
of the order of this Tribunal was based on consent by the parties.
16. It, therefore, stands accepted that the
parties have arrived at some agreement.
The petitioner, however, appears to have contended before the High Court
in response to the submissions of Mr.Maninder Singh that the said interim order
was not passed on consent. It is
difficult to conceive in the facts and circumstances of the case that only a
part of the order was passed on consent and not the entire one. We would however, proceed on the assumption
that there was some confusion in the matter although one of us recalls that the
said order was passed by consent but indisputably the said fact has not been
mentioned in the order-sheet.
17. Be that as it may, for the purpose of
passing an interim order, the court has to arrive at certain figures so that
despite expiry of the tenure of the agreement, MSO can be conferred the benefit
of transmitting the signals of the channels of the broadcaster.
18. The petitioner for one reason or the other
did not pay any amount whatsoever towards the subscription fees. The parties had entered into an agreement. For one reason or the other, however, they could
not arrive at a consensus on the terms and conditions of the agreement for
renewal thereof.
19. This petition was filed on 23.03.2009 i.e.
even prior to the expiry of the said agreement.
The public notice was issued on 07.03.2009 for
non-payment of outstanding dues and non-renewal of subscription agreement. The invoice dated 25.02.2009 shows a total
outstanding due was Rs. 1,23,05,229.68.
On the basis of 48492 subscriber base for Bouquet–I,
Bouquet-II and Ten sports channel, according
to the respondent, the outstanding amounts shall be as under:
|
Cumulative
outstanding |
|
1,75,81,165.00
liabilities upto 23.03.2009 @ a monthly subscription of 300566 lakhs without
taxes for 31828 subscribers |
|
2,28,19,287.62
liabilities beyond 24.03.2009 @ monthly subscription of 52.38 lakhs |
|
2,80,57,410.24 |
|
3,32,95,532.86 |
|
3,85,33,655.48 |
|
4,37,71,778.10 |
|
4,90,09,900.72 |
|
5,42,48,023.34 |
|
5,94,86,145.96 |
|
6,47,24,268.58 |
|
4,47,24,268.58 |
20. The
matter of renewal of agreement cannot be put on hold for all time to come. The petitioner prima facie cannot rely on one
part of the offer while refuting the other. It appears from the minutes of the meeting
dated 08.04.2009 that it was inter alia agreed:
“(V) on the
issue of applicability of CAS area rates and applicability of tariff ceiling as
fixed by TRAI as per its Notification dated 4th October 2007 both
the parties have agreed that in the absence of the notification of the Ministry
of Information and Broadcasting (MIB) for Pune and due the pendency of the
Appeal before Hon’ble Supreme Court of India relating to the Tariff Order of 4th
October 2007, it would not be
appropriate to press on these issues.
(VI) due to
some unavoidable circumstances the authorized representatives of ZEEL (“Zee
Entertainment Enterprises Ltd.”) and ZNL
(Zee News Ltd.) could not attend today’s
meeting and hence no decision on the pending carriage issue for the period
01.04.2008 to 31.03.2009 could be discussed.
Now both the parties have agreed to meet on 17.04.2009 at 11.00 AM at
Zee Turner’s Noida office to further discuss the remaining pending issues.”
21. A
meeting was also held on 03.08.2009.
“during the course of the discussion
the representatives of ZEEL and ZNL have clarified that they have nothing to do
with the issue of subscription agreement ICC has to execute with Zee Turner for
the period 01.04.2009 to 31.03.2010, Further it has also been clarified to ICC
representative that in the last carriage agreement executed with ICC for the
period 01.04.2008 to 31.03.2009 it was specifically mentioned that carriage
charges shall not be adjusted/set off against subscription charges payable by ICC to Zee Turner. Moreover,
the representatives of ZEEL/ZNL have offered to pay to ICC for the
period 01.04.2009 to 31.03.2010 a lump sum amount of Rs. 2.10 crores (Rupees
Two crores Ten lakhs only) per annum towards carrying their following channels
on ICC network:
However, ZNL/ZEEL had stated that in
case ICC does not execute a fresh subscription agreement with Zee Turner then
ZNL/ZEEL’s aforesaid offer shall stand cancelled.”
22. The
petitioner however, for reasons best known to it, did not sign the minutes of
the said meeting. From the said letter,
it appears that petitioner’s authorized representative also did not sign the
minutes of the meeting on 08.04.2009.
23. According
to the respondent the said agreements dated 01.02.2005 were executed on the
basis of subscriber base of 31828. It
has furthermore been contended that distribution of signals of Ten Sports
channel moved from Sony to the respondent only on 01.04.2008 but still then the
petitioner had not paid any amount for signals of the said channel.
24. It
has furthermore been contended that despite requests made by the respondent it
did not furnish all relevant documents including fresh SLR for entering into
fresh agreement for the period 01.04.2008 to 31.03.2009.
25. It
is in the aforementioned situation in our opinion, prima facie, the respondent
was entitled to put forward its claim with regard the subscription fees. This Tribunal was entitled to direct the
petitioner to pay the monthly subscription fees of a particular sum as an
interim measure. There cannot be any
doubt or dispute that such a direction cannot be premised on whims and caprice on
the part of the Tribunal. It must have a
rational basis although it may not been possible to arrive at a mathematical
exactitude.
26. So
far as the arrears are concerned, the petitioner was bound to pay the aforementioned
agreed sum of Rs. 1.75 crores at one go, if it wanted to obtain a stay on the
operation of the public notice. But it did not do so. Even from March 2009 till the date of passing
of the interim order, it did not offer any other or further sum to the
respondent. It could not have forced the
respondent to accept all its contentions.
While negotiating it could not have accepted part which is favourable to
it and reject which is not. Minutes of
the meeting must be given effect to in its entirety. The petitioner was at liberty to either
accept the same or reject it.
27. So
far as the contention of the petitioner that it was entitled to carriage
charges from respondent no. 2 and respondent no. 3 are concerned, the same cannot
be accepted for more than one reason:
1.
No
prayer has been made as against the respondent no. 2 and respondent no. 3. Having impleaded them as parties in this
petition it does not lie in the mouth of the petitioner to contend that no such
relief has been claimed, as the respondent no.1 is the alter ego of respondent
no. 2 and respondent no. 3 particularly when even no such plea has been raised
in the petition
2. The
TRAI in its regulation framed on 17.03.2009 has inserted a proviso. We may
notice the same
“3. In regulation 3 of the principal regulations, ------
After the
second proviso to sub-regulation 3.2, the following proviso shall be inserted,
namely :-
Provided also
that the provisions of this sub-regulation shall not apply in the case of a distributor
of TV channels, who seeks signals of a particular TV channel from a
broadcaster, while at the same time demanding carriage fee for carrying that
channel on its distribution platform.”
The Explanatory Memorandum attached
to the said clause reads as under :
“This has been done to ensure that
the broadcasters are not forced to supply their channel in terms of regulation
3.2 and at the same time forced to pay carriage fee for the same channel. This
amendment has been made to prevent a distributor of TV channels from misusing
the regulation 3.2.”
28. The
question as to whether the petitioner would
ultimately found to be entitled to
an agreement with the respondent at the rates prescribed for CAS in terms of
the recommendations made by TRAI or not cannot be determined at this stage.
29. Prima
facie, however, such an agreement must be arrived on a consensual basis. We would assume that the contentions of the
respondent that its Vice President was not authorized to make promises on
behalf of the senior management in absence of three other representatives is
not correct.
Such assurance however having regard
to the legal position cannot be given effect to; in view of the fact that an
agreement by and between the petitioner and the respondent No.1 as also between
the respondent no. 2 and the respondent no. 3 have also expired. Mr.Chawla furthermore was very fair in
stating that the petitioner had not been putting the respondent on the
preferential basis in its system on and from 01.11.2009. We have hereto before, noticed the change in
the legal position.
30. The
parties were required to enter into an agreement in writing. Despite several meetings, they did not arrive
at any consensus. If the petitioner does not agree to some of the terms, it
could have signed the agreement subject to its objection in regard to the
particular clauses.
We may place on record that this
Tribunal in Petition no. 44(c) of 2004 on 17.01.2006 (Star India Pvt. Ltd. v
Indusind Media & Communications Ltd.) held as under:
“This
raises another question as to who has to approach this forum for the redressal
of its grievance.
Shri Salve contends that it is the
signal seeker who should approach this forum while Shri Kathpalia contends that
it is the broadcaster who should approach the Tribunal if the receiver of
signals disagrees with the terms of the agreement.
We do not find much difficulty in
deciding this issue. The broadcaster is
the owner of the signals. If any of the
other service providers seeks his signals, normally it should be on agreed
terms. The right to propose the terms is
with the seller but this right is regulated by the Interconnect Regulations
which mandates the owner of the signals to supply signals on a “must provide”
basis and on reasonable terms. At the
same time, the Regulations governing the subscription agreement require a
written agreement being signed before the supply of signals. On a perusal of these regulations we are of
the opinion that seeker of the signal must negotiate with the supplier of
signals and if such negotiations fail he should approach this Tribunal for
redressal of his grievances. In such
cases if the seeker of signals wants immediate signals or his current signals
not to be disrupted, it can always pray for an interim arrangement being made
by this Tribunal and the Tribunal may in a given case protect the interest of
both the parties by making suitable interim orders.
In the above view, we hold in the
instant case, IMCL being the seeker of the signals, if the terms proposed are
not acceptable on grounds of unreasonableness it may challenge the same and in
a petition so challenging it, may seek such interim order as it may think
necessary.
If this procedure is not followed it
is likely that many a service provider who is receiving signals, would by
virtue of an interim order made by this Tribunal or other forums, in one or
other earlier case, may refuse the terms of fresh agreements as and when due
and can continue to receive signals under those interim orders.
We will now advert to the last
argument of the learned counsel for the respondent whereby it is contended that
now that the matter is before this Tribunal and the draft agreements proposed
by Star is on file as also the grounds of attack by IMCL to some of the terms
of the said agreement, this Tribunal should embark upon an enquiry as to the
validity of the terms of the agreement in this petition itself.
We cannot accede to the above
request. If a party is aggrieved by any
one of the actions of the other party, the aggrieved party should approach this
Tribunal based on that cause of action.
May be in some exceptional case and on certain set of facts, to avoid
multiplicity of proceedings this Tribunal if it thinks fit and convenient and
in the interest of justice, may embark upon such an exercise. But in the present case, we are not satisfied
that such an extraordinary procedure should be adopted by this Tribunal by
holding an enquiry in a petition where the petitioner has not challenged the
terms of the agreement, thereby converting this petition as that of IMCL’s
petition to grant it relief in a petition filed by Star. We think on the facts of this case adopting
a procedure suggested by IMCL would only send wrong signals to the
litigants. Therefore, if IMCL still
remains aggrieved by the terms proposed by Star, it shall if so advised,
challenge the unacceptable terms on whatever ground it think it should be
challenged.”
31. We may place on record that Mr. Chawla has
placed before us a communication by copy of a letter dated 3.11.2009 issued by
the petitioner to the respondent to contend that even after the order of the
Delhi High Court, the respondent had been approaching the petitioner for
negotiation. This may or may not be so
it but the same by itself should not come on the way of this Tribunal to pass
an order on the interim matter in terms of the directions of the Delhi High
Court.
32. Several other issues have been raised. We as at present advised do not intend to
enter into any larger controversy. The
petitioner has made out a prima facie case for grant of the injunction, but,
therefor, it must be put to some terms.
33. It is a fact that the petitioner has signed
a subscription agreement for a subscriber base of 31827 on 1.1.2005. The said agreement has expired on 31.12.2005. The petitioner is admittedly enjoying signals
since 2006 till date. The signals for
Ten Sports have also been enjoyed by the petitioner since 1.4.2008 till it was
disconnected on 19.06.2009 by respondent after obtaining orders from the High
Court of Delhi as contended by the petitioner.
When the petitioner threatened the respondent for alleged willful
disobedience of the orders of the Tribunal, the respondent has taken the plea
of the requirement of the change of decoders.
Ten Sports has again been disconnected since 1.07.2009, while
West-Indies Bangladesh series was on, as contended by the petitioner.
It is an indisputable fact that no
fresh SLR has been given by the petitioner to respondent and since 2005 till
date the subscriber base of 31827 is only being paid at the rates prescribed
for different Bouquets/channels of the respondent. On the other hand, the petitioner is paying
for 48492 subscribers at a monthly charge of Rs. 45.57 lakhs with taxes. The subscriber base of Star Den is a
negotiated subscriber base of a contemporary and similarly placed channel and
therefore, 40 lakhs + taxes appears to be a reasonable figure for the
petitioner to pay to the respondent.
34. This Tribunal, has to, fix the quantum of
subscription fees payable by the petitioner.
We, keeping in view of the rival contentions of the parties i.e. whether
the subscription fee is 30 lakhs or 52 lakhs, are of the opinion that this
Tribunal’s order dated 20.10.2009 does not require any modification, as the amount
of Rs.40 lakhs plus taxes appears to be reasonable. It must be emphasized that the petitioner has
not been asked to pay the entire outstanding at a time. It has also not been
asked to pay any interest thereupon.
35. We for the reasons stated hereinbefore
reiterate our interim order dated 20.10.2009.
36. The petitioner must pay the dues within 30
days from date failing which the interim order shall stand vacated without any
further reference to the Bench.
……….……………. J
(S.B. Sinha)
Chairperson
………………………..
(G.D. Gaiha)
Member